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Re: Draft summary of Creative Commons 2.0 licenses (version 3)

On Sat, Mar 26, 2005 at 05:27:57PM -0500, Benj. Mako Hill wrote:

> In general we should distinguish the types of problems we have with
> the license and separate them into a few categories:
>   - Real limitations on freedom that seem to by by design;
>   - Wording that says something other than what they mean and creates
>     a serious limitation on freedom;
>   - Wording that is less than ideal and potentially confusing;

I'm not sure that's necessary. I think we only bother with the first
two types of problems.

Problems that are built in to the purpose of the license we pretty
much dismiss out of hand (i.e., the NonCommercial and NoDerivatives
license elements). I don't think there's a reason to consider these
very closely or to make recommendations ("Please change your
NonCommercial license element to allow commercial use").

I think the second set -- assumably unintended consequences -- is
where most of the effort is concentrated. Maybe the only exception
would be the revocation clause, which may or may not be intended to
allow redacting references to the Original Author in the text proper.

That all said, if you'd like to label the problems in the summary with
some kind of ranking (1, 2, 3) or something, I can add text that
passes along these distinctions. As a start, I think all of the
problems with the Attribution license are of the second sort, and the
problems with the NonCommercial and NoDerivatives licenses are of the
first sort.

> Also, we should distinguish between the types of solutions we want to
> suggest:
>    - Fixes that can be made by clarifying their position;
>    - Fixes that can be made by changing or removing text;

Again, given that CC is not a party to the license, I'm not sure what
clarifying their position will accomplish. If _we_ can be confused
about parts of the license, licensors and licensees will be, too.

The absolutely best way to clarify a position is to clarify the text.
I think any out-of-band clarification is a veeeerry distant second.

> > It's not clear which if any "technological measures" would be
> > consistent with the terms of the license. Because of this vagueness,
> > we have to take a worst-case view and consider that there are *no*
> > such measures that are allowed.
> I believe that CC will dismissive of this critique -- at least as long
> as it's leveled in this fashion. The wording is clumsy but if CC
> wanted to block private distribution, they would have said that.

I really have a hard time with this one. I think assuming that DRM is
inconsistent, but encryption, firewalls, and VPNs are not, is
incredibly sloppy thinking.

I guess the logic goes, "Good guys are FOR encryption and firewalls
and VPNs, and good guys are FOR this license, and good guys never hold
contradictory or inconsistent beliefs. THEREFORE encryption and
firewalls and VPNs are consistent with the terms of the license.
Conversely, good guys are AGAINST DRM, so DRM must not be consistent
with the terms of the license." I just don't think there's much in
there that a licensee can count on.

I don't know what Creative Commons thinks about, say, steganography.
Or translation into Tamil, or Kryptonite bike locks. For? Against?
Which are consistent and which aren't?

That all said, if you think that there's some better language that
could be used here, suggestions welcome.

> In terms of suggesting a textual fix, how about:

I agree 100% with Lewis Jardine on this one. Well said, Lewis!

On the trademark subject, you asked,


...in an HTML comment...

> plus statements from the
> authors, plus a graphical distinction and a explicit statement that CC
> is not party to the license in the same block of text *really*
> "sufficiently ambiguous" enough to make this a freedom issue?

I think the overreaching language is the main freedom issue. The
response from CC when it's been pointed out has been, "But that
section is not a part of the license. The license users aren't bound
by it."

Now, agreed, stuff that's not part of the license shouldn't matter. 
But it's really, really difficult to tell that the overreaching
language in the trademark restrictions is ignorable. I mean, it's
RIGHT THERE, on the same page as the license text. Please, take a
moment to look at it in a graphical Web browser:


I don't know about you, but the visual language of that section of the
page (at the bottom) doesn't really convey to me "not binding" or
"non-normative". I think it's hard to say that that's really obviously

To know that they're not bound by it, licensors and licensees have to
be able to read the license page and say, "Hey, this part is bogus and
unfair, but I don't have to follow it because it's in a white box."
They also have to know that Creative Commons does not claim copyright
on the license, and they have to know that that means that following
the trademark restrictions isn't necessary if you want to distribute
the license.

I think that's just too much to ask, especially when such a simple fix
is possible. If it's really not part of the license, it doesn't even
require making a new version!

w/r/t the text of the summary: I think in my effort to preempt the
canned response, I put too much emphasis on the niggling details. I'll
try to correct that.


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